Canada: Ontario Court Of Appeal Summaries (February 11 – 15, 2019)

Blaney's Appeals
Last Updated: February 22 2019
Article by John Polyzogopoulos

Good evening.

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario. There were only three substantive decisions.

Topics covered this week included wills and estates (capacity and undue influence), insurance coverage in the MVA context where there was a question of intentional acts as opposed to mere negligence, and the familiar issue of whether an order is final or interlocutory for appeal purposes.

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which will take place at the OBA, 20 Toronto Street, Toronto, on Monday, February 25. It is a three hour dinner program beginning at 5pm, which will also be available by live webcast for those who cannot attend in person.

Eliot Kolers, David Thompson and Katherine Di Tomaso will be our panelists on the first set of cases: Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the "Anti-SLAPP Sextet".

Last, but certainly not least, Glenn Chu of the City of Toronto, Yashoda Ranganathan of MAG and Donald Eady will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Wishing everyone an enjoyable family day long weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

CIVIL DECISIONS

Brunning v. Fontaine, 2019 ONCA 98

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

C. Coughlan and Brent Thompson, for the moving party

L. Greenspon, for the responding party

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Costs, Recusal, Reasonable Apprehension of Bias, Final or Interlocutory Order, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) and s. 19(1)(b), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Catford v. Catford, 2013 ONCA 56, Brunning v. Canada (Attorney General), 2018 ONCA 1009

FActs:

On January 4, 2018, the motion judge released reasons addressing various issues raised in a Request for Directions brought by the responding party on behalf of her client. The decision went largely, but not entirely, against the responding party's client.

On January 15, 2018, the motion judge issued a Direction addressing the contents of various emails sent by the responding party to the court in which she expressed, in part, her disagreement with the January 4 decision: Fontaine v. Canada (Attorney General), 2018 ONSC 357 (the "January 15 Direction"). The motion judge then invited costs submissions with respect to the January 4 decision. The moving party submitted that costs should be paid personally by the responding party.

The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself and proceeded to deal with the costs. In doing so, he ordered the responding party to pay costs personally in the amount of $25,000.

The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave. It therefore seeks to quash the appeal for want of jurisdiction. The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue.

Issues:

(1) Is the recusal order an interlocutory order or a final order?

Holding:

Motion granted.

REasoning:

(1) The recusal order is an interlocutory order. The appeal was therefore quashed. The recusal order did not finally determine any substantive rights of the parties, nor did it determine a substantive claim or defence in the matter before the court. Thus, it was an interlocutory order that may only be appealed to the Divisional Court, with leave.

The only substantive issue was whether the responding party must personally pay the costs of the January 15 Direction. That issue was separately determined by a costs order and remained the subject of an outstanding motion for leave to appeal to the Court of Appeal.

The jurisdiction of the Court of Appeal by way of appeal from orders of the Superior Court of Justice is set out in s. 6(1)(b) of the Courts of Justice Act. It provides that the Court of Appeal has jurisdiction to hear an appeal from a final order of a judge of the Superior Court of Justice "except an order referred to in clause 19(1)(a)". That exception applies to final orders, under s. 19(1.2)(a), for "a single payment of not more than $50,000". The costs order was a final order. Given that it was for an amount under $50,000, the Court of Appeal did not have jurisdiction to hear the appeal. Any appeal lies to the Divisional Court. However, because it is a costs order, leave to appeal was required under s. 133(b) of the Courts of Justice Act, but it was not sought.

Liu v. The Personal Insurance Company, 2019 ONCA 104

[Doherty, Simmons and Pardu JJ.A.]

Counsel:

J. LeRoy, for the appellant

B. Cameron, for the respondent S.B. , plaintiff in actions CV-08- 090129-00, CV-09-387093 and CV-13-114389-00

L. Covens, for the respondent The Personal Insurance Company

L. Hamer, for the respondent Ruo Hang Liu

Keywords: Contracts, Insurance, Automobile, Coverage, Uninsured or Underinsured Motorist, Negligence, Intentional Acts, Vicarious Liability, Highway Traffic Act, R.S.O. 1990, c. H.8, s 192(2)

FActs:

The appellant's son was involved in a collision while he was driving a Ford truck owned by the appellant, in which he deliberately rammed the Ford truck into a Honda Civic. As a result of the collision, the appellant's son was convicted of criminal negligence causing bodily harm and aggravated assault.

This action was initiated by the driver of the Honda, who brought a lawsuit against his own insurer, The Personal Insurance Company ("Personal"), in the event that the legally responsible parties were uninsured or underinsured. The action was initiated in response to an action brought by one of the occupants of the Honda, who brought three lawsuits in total, including one against both drivers and one against the appellant, as the owner of the Ford.

The appellant appeals a determination by way of summary judgment regarding whether the appellant was the actual owner of the Ford. In the course of the motion for summary judgment, it was agreed that if the appellant was found to be the owner of the Ford, the appellant's insurer, Wawanesa Insurance ("Wawanesa"), would respond to the claim. If this was found to be the case, then the action against Personal could be dismissed. The motion judge found that the appellant was the owner of the Ford and accordingly, dismissed the action as against Personal.

In response, the appellant asked the motion judge if she could withdraw the agreement she made during the course of the motion, and replace it with the admission that the dismissal against Personal was only operative if the appellant was found vicariously liable for her son's negligence pursuant to subsection 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA"). The appellant argued that subsection 192(2) only applied to negligent driving, not to intentional assaults using a vehicle.

The motion judge denied the appellant's request on the basis that her son's criminal conviction conclusively established that he was negligent.

Issues:

(1) Did the motion judge err in finding that the criminal conviction for criminal negligence foreclosed an argument that the appellant's son's acts were intentional and not negligent?

Holding:

Appeal dismissed.

REasoning:

(1) No. The appellant's arguments concerned only her individual liability, and did not seek to have the dismissal against Personal set aside. If the appellant's arguments succeeded, and she was found not to be liable, then Wawanesa would not have been liable to pay for the loss. Since Personal would not have been party to the action, there would have been no one available to respond to loss caused by an uninsured or underinsured driver. Such a result would have prejudiced the injured parties in a way that was not compensable by costs. Accordingly, the Court of Appeal held that the interests of justice disentitled the appellant from advancing her arguments.

The Court of Appeal did not decide whether subsection 192(2) of the HTA made owners of vehicles vicariously liable for intentional torts rather than just negligence.

Quaggiotto v. Quaggiotto, 2019 ONCA 107

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

J. Stark and T. Serafimovski, for the appellant

A. Landry and R. Colautti, for the respondent

Keywords: Wills and Estates, Testamentary Capacity, Coercion, Undue Influence, Orfus Estate et al. v. Samuel and Bessie Orfus Family Foundation et al., 2013 ONCA 225

Facts:

The appeal involved a dispute between two brothers over a codicil executed on August 18, 2014 by their mother, who died on March 27, 2016. The codicil left the residue of her estate to the respondent son. Her previous will had divided the residue equally between the respondent and the appellant son.

The appellant challenged the validity of the codicil. At trial, the trial judge ruled in favour of the respondent and upheld the validity of the codicil. He found that the respondent had satisfied his burden of proving due execution of the codicil and knowledge of its contents. Further, he said that the respondent had met his burden of proving testamentary capacity and that the respondent had successfully rebutted any inference of coercion or undue influence.

The appellant appealed that decision.

Issues:

(1) Did the trial judge err in finding that the parties' mother had knowledge of the contents of her will when she executed the codicil?

Holding:

Appeal dismissed.

REasoning:

(1) No. The evidence supported the factual finding that the parties' mother had knowledge of her assets. First, the trial judge relied on the testator's knowledge of her holdings in the family corporations. There was also the evidence of a designated capacity assessor and practicing geriatric nurse consultant, whose report stated that she was satisfied that the parties' mother knew what her assets and her net worth were. Moreover, her former solicitor also felt strongly that she was knowledgeable with respect to her assets.

SHORT CIVIL DECISIONS

Son v. Khan, 2019 ONCA 100

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

F. Khan and D. Khan, appearing in person

S. Bae, for the respondents

Keywords: Civil Procedure, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 14

New Haven Mortgage Corporation v. Delson, 2019 ONCA 102

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

J. D. Sloan, for the appellants

M. Wise and J. Kamenetsky, for the respondents

Keywords: Contracts, Real Property, Mortgages, Enforcement

Iqbal v. Mansoor, 2019 ONCA 110

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

M. Iqbal, acting in person

P. Mand, for the respondents

Keywords: Civil Procedure, Appeals, Costs, Jurisdiction, Arbitration, Arbitration Act, 1991, S.O. 1991, c. 17

Marchese v. Marchese, 2019 ONCA 116

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

A. Marchese, in person

S. Klotz and J. Klotz, for the respondent

Keywords: Family Law, Matrimonial Home, Partition and Sale

CRIMINAL DECISIONS

R. v. D.H., 2019 ONCA 101

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

C. Verner, for the appellant

J. Hanna, for the respondent

Keywords: Criminal Law, Sexual Assault, Criminal Code, s. 276 Application, R. v. J.H, 2018 ONCA 245, R. v. S.C, 2018 ONCA 454

R. v. Hersi, 2019 ONCA 94

[Doherty, Miller and Trotter JJ.A.]

Counsel:

P. Slansky, for the appellant

C. Michaelson, X. Proestos and S. Oakey, for the respondent

Keywords: Criminal Law, Terrorist Activities, Lost Evidence, Canadian Charter of Rights and Freedoms, s. 7, R v Hersi, 2014 ONSC 4101, R v Carosella, [1997] 1 S.C.R. 80, R v O'Connor, [1995] 4 S.C.R. 411, R v La, [1997] 2 S.C.R. 680, Right to Make a Full Answer and Defence, R v Stinchcombe, [1991] 3 S.C.R. 326, R v Egger, [1993] 2 S.C.R. 451

R. v. Schoer, 2019 ONCA 105

[Pepall, Lauwers and Fairburn JJ.A]

Counsel:

P. Alexander, for the appellant

M. Lai, for the respondent

Keywords: Criminal Law, Fraud Over $5,000, Evidence, Hearsay, Single Transaction Rule, Criminal Code, s. 581(1), R. v. Sinclair, 2011 SCC 40, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), R. v. Kanagarajah et al., 2018 ONCA 121

R. v. Palmer-Coke, 2019 ONCA 106

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

F. Mirza, for the appellant

C. Suter, for the respondent

Keywords: Criminal Law, Sexual Assault Causing Bodily Harm, Unlawful Confinement, Evidence, Admissibility, Hearsay, Expert Evidence, R v Mohan, [1994] 2 S.C.R. 9, R v Abbey, 2009 ONCA 624, R v Pritchard, 2008 SCC 59

R. v. Chafe, 2019 ONCA 113

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

S. Hutchison, for the appellant

S. Shaikh, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Eyewitness Identification, Jury Instructions, R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A), R. v. Olliffe, 2015 ONCA 242, R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), R. v. J.S.W., 2013 ONCA 593

R. v. Dennis, 2019 ONCA 109

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

M. Puskas, for the appellant

R. Sabo, for the respondent

Keywords: Criminal Law, Costs, Lawyers, Personal Liability, Provincial Offences Act, R.S.O. 1990, c. P.33, Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26

R. v. Farkas, 2019 ONCA 108

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

A. Stastny, for the appellant

C. Sharawy, for the respondent

Keywords: Criminal Law, Mail Theft, Criminal Code, s. 356(3)

R. v. Porter, 2019 ONCA 114

[MacPherson, Sharpe and Tulloch JJ.A.]

Counsel:

S. Hutchison and R. Porter, for the appellant

L. Schwalm, for the respondent

Keywords: Criminal Law, Sentencing, R. v. Lacasse, 2015 SCC 64, R. v. Mathur, 2017 ONCA 403

R. v. Tsega, 2019 ONCA 111

[Hourigan, Pardu and Harvison Young JJ.A.]

Counsel:

J. Dawe and M. Dineen, for the appellant

A. Alyea, for the respondent

Keywords: Criminal Law, Break and Enter, Manslaughter, Evidence, Admissibility, Hearsay, Sentencing, Canadian Charter of Rights and Freedoms, s. 11(b), Criminal Code, R.S.C., 1985, c. C-46, s. 686(b)(iii), R. v. Bradshaw, 2017 SCC 35, R. v. Jordan, 2016 SCC 27, R. v. Khelawon, 2006 SCC 57

R. v. Augustine, 2019 ONCA 119

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

S. Whitzman, for the appellant

D. Bell, for the respondent

Keywords: Criminal Law, Dangerous Driving, Sentencing, Joint Submission, Criminal Code, s. 249(3), R. v. Anthony-Cook, 2016 SCC 43, R. v. Frickey, 2017 ONCA 1024

Toronto (City) v. Riddell, 2019 ONCA 103

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

M. Riddell, acting in person

G. Katz, for the respondent

Keywords: Provincial Offences, Speeding, Certiorari, Provincial Offences Act, R.S.O. 1990, c. P.33., s. 140(1) and s. 140(3), R. v. Awashish, 2018 SCC 45, York (Regional Municipality) v. McGuigan, 2018 ONCA 1062

ONTARIO REVIEW BOARD

Halat (Re), 2019 ONCA 112

[Feldman, Lauwers and Nordheimer JJ.A]

Counsel:

A. Szigeti, amicus curiae

D. Halat, in person

P. Cowle, for the Attorney General

Keywords: Ontario Review Board, Mootness, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

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